Citation Nr: 1230551
Decision Date: 09/06/12 Archive Date: 09/10/12
DOCKET NO. 06-00 406A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Propriety of the discontinuance of the Veteran's service-connected disability compensation benefits from December 29, 2003 to March 16, 2004, due to his fugitive felon status, to include entitlement to a waiver of such indebtedness in the amount of $729.10.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
H. Bunker, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1966 to March 1970.
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A March 2005 decision reduced the Veteran's compensation benefits after finding he was a fugitive felon from December 29, 2003 to March 16, 2004. An April 2006 decision denied the Veteran's request of waiver for his debt of $729.10.
The case was brought before the Board in May 2010, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. The case was again before the Board in May 2011 at which time the claim was again remanded to schedule the Veteran for a Board hearing. However, in a February 2012 statement the Veteran indicated that he did not want a hearing and wanted the Board to decide his case on the evidence provided. However, the AOJ did not provide the Veteran with an additional supplemental statement of the case (SSOC) prior to certifying the claim back to the Board.
Typically, there must be substantial compliance with the Board's remand directives or the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although there was not substantial compliance by the AOJ, in that there was no SSOC issued, the Board is finding that the creation of an overpayment was not valid, and as such, any noncompliance will be considered harmless error.
FINDINGS OF FACT
1. The evidence does not reflect that the Veteran was either fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense, or that he was violating a condition of probation or parole imposed for commission of a felony, from December 29, 2003 to March 16, 2004.
2. As the termination of his compensation benefits was improper, there was no overpayment of compensation benefits to him and, thus, no resultant indebtedness.
CONCLUSION OF LAW
The Veteran was not a fugitive felon and the termination of his disability compensation was unwarranted; the consequent determination of an overpayment of benefits and indebtedness of $729.10 is also invalid. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. §§ 3.665(n), 3.666(e)(2) (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
The VCAA, however, does not apply to waiver claims. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004); and Reyes v. Nicholson, 21 Vet. App. 370 (2007) (the notice provisions of 38 U.S.C. § 5103(a) do not apply to Chapter 53 proceedings).
Regardless, the Board need not discuss whether there has been VCAA compliance, even concerning the decision to discontinue the Veteran's service-connected disability compensation benefits from December 29, 2003 to March 16, 2004, because the claim is being granted. See, e.g., 38 C.F.R. § 20.1102 (2011).
Analysis
The record reveals that VA determined that the Veteran was a fugitive felon from December 29, 2003 to March 16, 2004 and that as a result of his fugitive felon status the Veteran was not entitled to VA compensation benefits received prior to his clearing the warrant for his arrest. As shown below, the Board finds that the Veteran was not a fugitive felon and that the overpayment of VA compensation benefits was not properly created.
The Veteran contends that the overpayment incurred from December 29, 2003 to March 16, 2004 was invalid as he was incarcerated during this time and was thus, not a fugitive felon for VA compensation purposes.
In November 2004 the RO informed the Veteran that there was information indicating that he was the subject of an outstanding warrant. The letter stated that payment of VA benefits to fugitive felons was prohibited, and that the Veteran had 60 days to clear the warrant or advise the VA if he believed that VA had identified the wrong person.
The record contains a December 2003 document indicating that a warrant for the Veteran's arrest had been issued on December 29, 2003, by the Cuyahoga County Sheriff's Office in Cleveland, Ohio. The record also reveals that the Veteran was arrested on March 16, 2004 with regard to this warrant.
As an initial matter, the Board notes that if the Veteran asserts the invalidity of a debt, the matter of whether the overpayment was properly created must be addressed before a claim for waiver of an overpayment may be adjudicated. Schaper v. Derwinski, 1 Vet. App. 430, 433-34 (1991).
A service member eligible for compensation benefits may not be paid such benefit for any period during which he or she is a fugitive felon. 38 U.S.C.A. § 5313B. The implementing regulation, 38 C.F.R. § 3.665(n), provides:
Fugitive Felons:
(1) Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Compensation or DIC is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon.
(2) For purposes of this section, the term fugitive felon means a person who is a fugitive by reason of:
(i) Fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or
(ii) Violating a condition of probation or parole imposed for commission of a felony under the Federal or State law.
(3) For purposes of paragraph (n) of this section, the term felony includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law.
(4) For purposes of paragraph (n) of this section, the term dependent means a spouse, surviving spouse, child, or dependent parent of a veteran.
38 C.F.R. § 3.665(n).
The Board has reviewed the numerous legal and correctional facility documents, as well as the Veteran's statements. As noted above, the Veteran contends that he violated his parole and was incarcerated for the period of time from December 29, 2003 to March 16, 2004.
The Board observes that a statement from the Marion Correctional Institution (CI) states that the Veteran committed a parole violation on November 3, 2003. He was committed following his conviction for this offense on March 16, 2004. See March 2005 statement.
The court docket from the Court of Common Pleas in Cuyahoga County, Ohio indicates that the capias, or warrant, was issued on December 29, 2003. On February 9, 2004 the Court sent a detainer to Lorain CI. The Board notes that this action implies that the Veteran was incarcerated at the Lorain CI at the time the detainer was issued.
The Veteran's June 2005 statement reiterates that he was arrested on October 24, 2003 and held until November 3, 2003 at which point he was released to the Lorain CI. He was transferred to this facility to wait for a parole hearing to determine if he had violated his parole. See also November 2005 statement. He also provided a copy of his booking certificate which shows that on November 3, 2003 he was released to Lorain CI. He further states that he appeared in court on March 16, 2004, which has been noted on the court docket.
The Board has reviewed this evidence and has determined that the Veteran was incarcerated from the period of December 29, 2003 to March 16, 2004 and it has not been shown that he fled to avoid prosecution or custody for an offense which is a felony under the laws of the state of Ohio. Consequently, the Board finds that the Veteran was not a fugitive felon as defined by VA regulation.
It follows that, as he is not shown to have been a fugitive felon, the termination of the Veteran's service-connected disability compensation benefits was unwarranted. Consequently, the assignment of an overpayment of benefits and resulting indebtedness of $729.10 was also invalid. See 38 C.F.R. § 1.911 and Schaper v. Derwinski, 1 Vet. App. 430 (1991) (if there is a challenge to the validity or lawfulness of the debt, then this is a preliminary consideration before determining whether waiver of the debt is warranted). Since the underlying indebtedness is terminated as a result of this decision, the question of waiver is rendered moot.
ORDER
The Veteran was not a fugitive felon, and so, discontinuance of his VA service-connected disability compensation benefits was improper.
The overpayment of VA compensation benefits from December 29, 2003 to March 16, 2004 was not properly created and was invalid.
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L.M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs